Modi Entertainment Network & Anr vs W.S.G.Cricket Pte. Ltd

Supreme Court21 January 2003Syed Shah Mohammed Quadri · Arijit Pasayat

SCC(2003) 4 SCC 341
Neutral2003 INSC 27
AIRAIR 2003 SC 1177
SCR[2003] 1 SCR 480

Ratio decidendi

The rule this decision rests on

1. A court exercising personal jurisdiction over a defendant has the power to grant an anti-suit injunction restraining that defendant from instituting or prosecuting proceedings in a foreign court, but this power must be exercised sparingly out of respect for comity—the principle that other courts are entitled to exercise their jurisdiction without interference. 2. In exercising discretion to grant an anti-suit injunction, a court must be satisfied that: (a) the defendant is amenable to its personal jurisdiction; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity is borne in mind. 3. Where multiple forums are available, a court may grant an anti-suit injunction by examining which is the appropriate forum (forum conveniens) and may grant such injunction in regard to proceedings which are oppressive, vexatious, or in a forum non conveniens. 4. Recitals in a contract regarding exclusive or non-exclusive jurisdiction of a court of choice are not determinative but are relevant factors; the nature of jurisdiction agreed between parties must be decided on a true interpretation of the contract on the facts and circumstances of each case. 5. A court of natural jurisdiction will not normally grant an anti-suit injunction against a defendant where parties have agreed to submit to the exclusive jurisdiction of a court—including a foreign court—as a forum of their choice, except in exceptional cases for good and sufficient reasons where circumstances permit relief from the burden of the contract, such as impossibility of prosecution in the chosen forum due to vis major or force majeure. 6. Where parties have agreed under a non-exclusive jurisdiction clause to approach a neutral foreign forum governed by specified law for resolution of their contractual disputes, ordinarily no anti-suit injunction will be granted in regard to proceedings in such agreed forum of convenience, as it shall be presumed the parties have considered all relevant factors before submitting to that jurisdiction. 7. A party to a contract containing a jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties; when one party approaches that court in which exclusive or non-exclusive jurisdiction is created, the proceedings cannot per se be treated as vexatious or oppressive, nor can the court be said to be forum non conveniens. 8. The burden of establishing that the forum of choice is a forum non conveniens or that proceedings therein are oppressive or vexatious rests on the party so contending to aver and prove the same. 9. Prima facie findings recorded by a trial judge at the stage of passing an interim order do not bind that judge at the final hearing stage, nor do they bind an appellate court or the parties at subsequent stages of the proceeding, as such findings cannot operate as issue estoppel. 10. Matters such as comparison of litigation expenses, hardship, and inconvenience in transporting witnesses to the agreed foreign court are deemed to have been foreseen by parties when they agreed to submit to that foreign court's jurisdiction and cannot constitute valid grounds to restrain prosecution of action in that court; the foreseeability test applies only to circumstances rendering approach to the forum of choice impossible, such as loss of the court's identity or force majeure.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CASE NO.:Appeal (civil) 422 of 2003

PETITIONER:Modi Entertainment Network & Anr.

RESPONDENT:W.S.G.Cricket Pte. Ltd.

DATE OF JUDGMENT: 21/01/2003

BENCH:Syed Shah Mohammed Quadri & Arijit Pasayat

JUDGMENT:

J U D G M E N T

SYED SHAH MOHAMMED QUADRI,J.

Leave is granted.

This appeal is from the judgment and orderdated April 1, 2002 made by a Division Bench ofthe High Court of Judicature at Bombay, in AppealNo.287 of 2002, allowing the appeal filed by therespondent and setting aside the order of thelearned Single Judge granting anti-suit injunctionagainst the respondent on the motion of theappellants.

The plaintiffs in Suit No.2422 of 2001 on thefile of the High Court of Judicature at Bombay(ordinary original civil jurisdiction) are theappellants and the defendant therein is therespondent in this appeal.

The short point that arises for considerationis: whether the Division Bench of the High Courterred in vacating the anti-suit injunction grantedby a learned Single Judge restraining therespondent from proceeding with the action betweenthe same parties pending in the English Court, theforum of their choice. It involves examination ofthe principles governing grant of an anti-suitinjunction by a court of natural jurisdictionagainst a party to a suit before it restraininghim from instituting and/or prosecuting the suit,between the same parties, if instituted, in aforeign court of choice of the parties.It will be appropriate to note, in brief, thefactual background in which the aforesaid questionhas arisen. The International Cricket Conference(ICC) organised a tournament 'ICC KnockoutTournament' (referred to as, 'the Event') in Kenyabetween October 3 and 15, 2000. The respondenthad the exclusive right to grant commercial rightsrelating to the Event. On September 21,2000, anagreement was entered into between the secondappellant and the respondent granting exclusivelicence to telecast the Event on Doordarshan andto sell advertisement slots thereon. The secondappellant assigned its right under the saidagreement to the first appellant on September 22,2000. The agreement, inter alia, provided thatthe licence granted thereunder was restricted toexhibiting the Feed by terrestrial free to airtelevision on Doordarshan only and the satellitebroadcast licence for India was granted to "ESPN -Star Sports" (for short, 'ESPN'); the appellantswere to pay a minimum guaranteed amount of USD 35lakhs (Rs.15 crores); if the revenue derived bythe appellants exceeded the aforementioned sum theparties would share the excess amount in themanner provided in the agreement. The Doordarshanused the PAS-4 Satellite to transmit the signalthrough its terrestrial transmitters. Soon afterthe commencement of the telecast the respondentregistered a complaint with the Doordarshan thatthe signal was being received in the Middle Eastwhich would amount to breach of contract betweenthe parties and violation of the licence grantedto Middle East licensee, called upon theappellants to rectify the same and threatened thatthe Feed to the Doordarshan would be discontinued.The response of the Doordarshan that it wasnothing but a natural spill over and that underthe agreement such spill over of other satellitesignals would not constitute a breach, wascommunicated to the respondent. However, therespondent was not satisfied with that explanationand kept on repeating the threat that if theDoordarshan did not switch from the PAS-4satellite to the INSAT satellite it woulddiscontinue the signal Feed to Doordarshan. Itappears that during the period of the telecastnothing was done by the respondent pursuant to thethreats. Even so, the appellants complained thaton account of the open threats of the respondentthe advertisers who had committed theiradvertisements on Doordarshan, pulled theiradvertisements out and switched them to ESPN andthat caused tremendous loss of revenue to them.It was also alleged that diversion ofadvertisements from Doordarshan to ESPN enabledthe respondent to benefit from the revenue sharingarrangement it had with ESPN. To resolve thedisputes generated by cross allegations made bythe parties against each other some negotiationswere held and pursuant thereto the appellantspaid, from time to time between December 2000 andFebruary 2001, a sum of USD 7,13,714 to therespondent. They also addressed letters to therespondent seeking time till May 2001 to makepayment of the balance amount.

While the matter stood thus, the appellantsreceived a notice dated May 3, 2001 from thesolicitors of the respondent demanding fullminimum guaranteed amount. Anyhow, on May 9,2001, the appellants filed a suit in the BombayHigh Court claming, inter alia, damages for theloss of advertising revenue due to alleged illegalthreats of the respondent. On November 22, 2001,the respondent also filed an action in the HighCourt of Justice, Queen's Bench Division (referredto as, 'the English Court'), praying for a moneydecree for the minimum guaranteed amount and tookout writ of summons, calling upon the appellantsto notify the English Court of their intention tocontest jurisdiction; it was also stated thereinthat failure to do so would amount to submittingto jurisdiction of the English Court and renderingthem liable to a default judgment. The appellantsentered appearance before the English Court onJanuary 9, 2002 and sought time till January 31,2002. Despite this move, on January 15, 2002, theappellants took out motion in the Bombay HighCourt praying for anti-suit injunction against therespondent in regard to the action in the EnglishCourt on the ground that the Indian Court was anatural forum for the adjudication of the disputeand that continuance of the proceedings in theEnglish Court would, on the facts of the case, bevexatious and oppressive. The respondent contestedthe motion relying on the non-exclusivejurisdiction clause in the contract.After hearing both the parties, a learnedSingle Judge of the Bombay High Court granted anad-interim injunction on January 30, 2002, interms of clause (a) and ordered notice of motionreturnable within six weeks. Aggrieved by thesaid order of the learned Single Judge, therespondent filed an appeal before the High Court.With the consent of the parties the Division Benchof the High Court which heard the appeal, disposedof the notice of motion itself finally along withthe appeal by order dated April 1, 2002. TheDivision Bench set aside the order of the learnedSingle Judge, dismissed the motion of theappellants and thus allowed the appeal. It isagainst that judgment and order of the DivisionBench of the High Court that this appeal isdirected.

Mr.Ashok H.Desai, learned senior counselappearing for the appellants, contended that theIndian Court was a natural and appropriate forum;the principle for granting anti-suit injunctionwas correctly noticed by the learned Single Judgewho recorded the finding that the actioninitiated by the respondent in the English Courtwas vexatious and oppressive; the Division Benchwithout disturbing the said finding dismissed themotion erroneously taking the view that only if aparty commenced litigation in a Foreign Court inbreach of a contract stipulating that the IndianCourts would have exclusive jurisdiction, could ananti-suit injunction be granted. He submittedthat reliance on Rule 32(4) of Dicey & Morris 'TheConflict of Laws' by the Division Bench wasmisconceived and that the correct rule applicablewas Rule 31(5) which referred to the decision ofthe House of Lords in the case of SpiliadaMaritime Corporation vs. Cansulex Ltd. [(1986) 3All.ER 842] and of the Privy Council in SNIAerospatiale vs. Lee Kui Jak & Anr. [(1987) 3All.ER 510]. In his submission the English Courtis a forum non-conveniens as the appellants haveto take all the witnesses to London which wouldcause great inconvenience and economic loss andunless the court grants injunction against therespondent, it would result in disastrousconsequences to the appellants. He furthercontended that the appellants could not haveforeseen that the respondent who was contractuallybound to supply Feed for telecast only throughDoordarshan, would thereafter jeopardise theappellants' advertising revenue by publiclythreatening to discontinue the signal Feed toDoordarshan on the alleged ground of spill over ofthe Doordarshan signal beyond India. Hevehemently contended that the natural andappropriate forum which had jurisdiction to grantanti-suit injunction were Indian Courts so theDivision Bench erred in dismissing the motion. Heargued that the English Court had no nexuswhatsoever with the parties or the subject-matterand that the contractual stipulation for non-exclusive jurisdiction of the English Courts(without reference to English conflict of lawrules) would not preclude the Indian2 Courts fromgranting anti-suit injunction.

Mr.Iqbal Chagla, the learned senior counselfor the respondent, argued that the prima faciefinding of the learned Single Judge in regard tothe action of the respondent in the English Courtbeing vexatious and oppressive would not bind thelearned Judge himself at the stage of finalhearing of motion much less would it bind theDivision Bench in appeal. According to the learnedcounsel the suit was filed in India to foreclosethe right of the parties to approach the court oftheir choice, namely, the English Court. Hepointed out that the parties had clearlystipulated in the contract for resolution of theirdisputes in accordance with the English Law and inthe English Court, therefore, the appropriateforum would be the English Court. In any event,it being the court of choice of the parties noinjunction could be granted against the respondentfrom prosecuting the case before that Court. Itwas submitted that the respondent continued theFeed during the stipulated period; the appellantshad the advantage of telecasting the Event andreceiving the benefit of the advertisement slotsfully; they made payments till the end ofFebruary; and, therefore, they could not beallowed to evade the liability under the contractby seeking injunction. It was also submitted thatthe foreseeability test pleaded by the appellantswas not relevant; the parties had chosen neutralforum in preference to natural forums - IndianCourts and Singapore Courts. In any event,submitted the learned counsel, when a party hadapproached an agreed jurisdiction under acontract, whether exclusive or non-exclusive, theother party could not be allowed to contend thatthe suit so filed was vexatious and oppressive;only in extra-ordinary and unforeseencircumstances which would justify a party to claimrelief from its bargain of non-exclusivejurisdiction clause that an anti-suit injunctioncould be claimed but certainly not on the groundof convenience such as expenses and hardship ofgetting the witnesses to the agreed neutral forum.The Courts in India like the Courts inEngland are courts of both law and equity. Theprinciples governing grant of injunction - anequitable relief - by a court will also governgrant of anti-suit injunction which is but aspecies of injunction. When a court restrains aparty to a suit/proceeding before it frominstituting or prosecuting a case in another courtincluding a foreign court, it is called anti-suitinjunction. It is a common ground that the Courtsin India have power to issue anti-suit injunctionto a party over whom it has personal jurisdiction,in an appropriate case. This is because courts ofequity exercise jurisdiction in personam. However,having regard to the rule of comity, this powerwill be exercised sparingly because such aninjunction though directed against a person, ineffect causes interference in the exercise ofjurisdiction by another court.

In regard to jurisdiction of courts under theCode of Civil Procedure (CPC) over a subject-matter one or more courts may have jurisdiction todeal with it having regard to the location ofimmovable property, place of residence or work ofa defendant or place where cause of action hasarisen. Where only one Court has jurisdictionit is said to have exclusive jurisdiction; wheremore courts than one have jurisdiction over asubject-matter, they are called courts ofavailable or natural jurisdiction. The growingglobal commercial activities gave rise to thepractice of the parties to a contract agreeingbeforehand to approach for resolution of theirdisputes thereunder, to either any of theavailable courts of natural jurisdiction andthereby create an exclusive or non-exclusivejurisdiction in one of the available forums or tohave the disputes resolved by a foreign court oftheir choice as a neutral forum according to thelaw applicable to that court. It is a well-settledprinciple that by agreement the parties cannotconfer jurisdiction, where none exists, on a courtto which CPC applies, but this principle does notapply when the parties agree to submit to theexclusive or non-exclusive jurisdiction of aforeign court; indeed in such cases the EnglishCourts do permit invoking their jurisdiction.Thus, it is clear that the parties to a contractmay agree to have their disputes resolved by aForeign Court termed as a 'neutral court' or'court of choice' creating exclusive or non-exclusive jurisdiction in it.

We shall now refer to Rule 32(4) on whichreliance is placed by the High Court and Rule31(5) on which learned counsel for the appellantsrelies. These Rules are formulated in theConflict of Laws by Dicey and Morris, (13thEdition) on the basis of judgments of the House ofLords and the Privy Council. It would, therefore,be useful to quote them here.

"31(5). An English Court may restrain aparty over whom it has personaljurisdiction from the institution orcontinuance of proceedings in a foreigncourt, or the enforcement of foreignjudgments, where it is necessary in theinterests of justice for it to do so."

"32(4). An English Court may restrain aparty over whom it has personaljurisdiction from the institution orcontinuance of proceedings in a foreigncourt in breach of a contract to referdisputes to an English (or, semble,another foreign) court."

A careful perusal of these Rules makes itclear that clause (5) of Rule 31 deals with a casenot covered by a jurisdiction agreement whereasclause (4) of Rule 32 deals with a case involvingjurisdiction agreement. Indeed, the learnedauthors themselves in para 12.123 state asfollows:

"The general principles upon which anEnglish Court may order a party who issubject to its personal jurisdiction notto institute, or to discontinue,proceedings in a foreign court have beenexamined above [clause (5) of Rule 31].But where the basis for the exercise ofthe court's discretion is that thedefendant has bound himself by contractnot to bring the proceedings which hethreatens to bring, or has brought, inthe foreign court, the principles whichguide the exercise of discretion of thecourt are distinct from those which wereexamined under clause (5) of Rule 31."

Thus, it is clear that the principles governingthe exercise of discretion by the court to grantanti-suit injunction against a person amenable tothe jurisdiction where by contract the defendanthas bound himself not to bring the proceedingswhich he threatens to bring or has brought in theforeign court, are different from the principleslaid down in Rule 31(5) which deals with cases ingeneral where an English Court may restrain aparty over whom the court has personaljurisdiction from the institution or continuanceof the proceedings in a foreign court. The testfor issuance of the anti-suit injunction to aperson amenable to the jurisdiction of the courtin person has been varying; first it was 'equityand good conscience' as could be seen from thedecision of the House of Lords in Carron IronCompany Vs. Maclaren (1855 5 HLC 416). The testlater adopted was 'to avoid injustice' [See:Castanho Vs. Brown & Root (U.K.) Ltd. & Anr.(1981 Appeal Cases 557)]. The test adopted in therecent cases is whether the foreign proceedingsare "oppressive or vexatious" SNI Aerospatiale'scase (supra). Even about this test it iscommented,"In most decisions, the courts haveconsidered whether the foreignproceedings were vexatious oroppressive. Historically, since the19th century, these terms were used inthe exercise of the court's jurisdictionwhether or not to grant anti-suitinjunctions. But, in the context ofstay of proceedings on ground of anotherforum being the more appropriate forum,these terms were effectively abolishedby the House of Lords in Macshannon vs.Rockware Glass Ltd. [(1978) 1 All ER625]. This was because of the moralconnotations attached to these words andthe difficulty for the defendant toprove that there was something wrong inthe character of the plaintiff.

Although Lord Goff explained, in SNIAerospatiale vs. Lee Kui Jak & Anr.

[(1987) 3 All.ER 510], that these wordscould have different meaning indifferent contexts, he was inclined, inAirbus Industrie GIE vs. Patel & Ors.[(1998) 2 All ER 257], to agree, albeitobiter, with Judge Sopinka in AmchemProducts Inc Vs. Workers CompensationBoard [(1993) 102 DLR (4th) 96], whopreferred to use, simply, 'ends ofjustice'. However, Lord Goff did notexpressly abandon these words."*

These expressions are not clearly defined but inC.S.R. Ltd. Vs. Cigna Insurance Australia Ltd.(1997 (189) C.L.R. 345), the High Court ofAustralia used them in the sense "only if there isnothing which can be gained by them over and abovewhat may be gained in local proceedings". TheSupreme Court of Canada adopted the test of therequirement of "the ends of justice". The essenceor the ultimate objective is to enquire how bestthe interests of justice will be served; whethergrant of anti-suit injunction is necessary in theinterests of justice. However, in a case where ajurisdiction agreement exists it is not necessary,in all cases, to show that foreign proceedings arevexatious, oppressive or that the local court is anatural forum for the claim and there is noobligation upon the claimant to seek relief fromforeign court first. The case on hand is a littledifferent from the category which is subject offormulation in Rule 32(4). Here the appellantswho are parties to the contract containing a non-exclusive jurisdiction clause of English Court andresolution of disputes in accordance with theprinciples of English law, are seeking anti-suitinjunction against the respondent to restrain itfrom proceeding with the action brought by it inEnglish Court.

Before endeavouring to discern the principlesapplicable to the type of the case on hand, we maywith advantage refer to the cases cited at theBar.

In Oil and Natural Gas Commission vs. WesternCompany of North America [1987 (1) SCC 496], thisCourt considered the question of granting anti-suit injunction. The appellant, Oil and NaturalGas Commission, entered into a drilling contractwith the respondent Western Company of USA.Pursuant to the contract the parties referredtheir disputes to arbitration, governed by theIndian Arbitration Act, 1940. A non-speakingaward was made which was followed by supplementaryaward without affording any hearing to theparties. At the instance of the foreign companythe awards were filed in the Bombay High Court.But thereafter the foreign company filed a plaintin the US District Court, New York, seeking anorder confirming the awards and a judgment forpayment of interest till the date of judgment andcosts. The ONGC filed an application under theIndian Arbitration Act for setting aside theawards of the umpire in the Indian Court andfurther prayed for an interim anti-suit injunctionrestraining the foreign company from proceedingfurther with the plaint filed in the US Court. Atthe initial stage an interim injunction wasgranted by a learned Single Judge of the HighCourt but the same was vacated after contest.From the said order an appeal was taken to thisCourt. It was held by this Court that when it wasnecessary or expedient to do so or when the endsof justice so required, the High Court hadundoubted jurisdiction to grant such an injunctionand that it would be unfair to refuse therestraint order because the action in the foreigncourt would be oppressive in the facts andcircumstances of the case. It was pointed outthat although the Supreme Court would sparinglyexercise its jurisdiction to restrain a party fromproceeding further with an action in a ForeignCourt, that case was one of those rare cases wherethe Court would be failing in its duty if ithesitated to grant the order of injunction. Itwas observed that since under the contract theparties were governed by the Indian ArbitrationAct, and as such the Indian Courts had exclusivejurisdiction to determine the validity andenforceability of the awards, the American Courthad no jurisdiction in that behalf. The appellantinvoked the jurisdiction of the New York Court topronounce on the same question which was requiredto be pronounced upon by the Indian Court and ifthe restraint order was not granted seriousprejudice would be occasioned and a partyviolating the very arbitration clause on the basisof which the award had come into existence wouldalso secure an order enforcing the award from aforeign court. However, it may be pointed outthat in that case there was no stipulationagreeing to non-exclusive jurisdiction in theForeign Court.

In British Indian Steam Navigation Co.Ltd.vs. Shanmughavilas Cashew Industries & Ors. [1990(3) SCC 481], the respondent purchased from EastAfrica a specified quantity of raw cashewnutswhich were shipped in a vessel chartered by theappellant-company incorporated in England. Thebills of lading incorporated a clause to theeffect that the contract evidenced by it shall begoverned by English law and disputes determined inEngland or, at the option of the carrier, at theport of destination according to English law tothe exclusion of the jurisdiction of the courts ofany other country. There was short supply ofcashewnuts so the first respondent filed a suit inthe Court of Subordinate Judge, Cochin, seekingdamages for the short supply. The appellantdefended the suit on the ground that it was a merecharterer of the vessel and not the owner and thatas per the bills of lading the court at Cochin hadno jurisdiction and only the English Courts hadjurisdiction. The suit was dismissed by the trialcourt, so also the appeal of the appellant by theHigh Court. On further appeal to this Court, itwas held that for purposes of jurisdiction theaction of the first respondent was an action inpersonam in Private International Law and thatsuch action might be decided upon the partiesthemselves. The chosen court may be a court inthe country of one or both the parties, or it maybe a neutral forum. The jurisdiction clause mayprovide for submission to the courts of aparticular country or to a court identified by aformula. It is a question of interpretation,governed by the proper law of the contract,whether a jurisdiction clause is exclusive or non-exclusive, or whether the claim which is thesubject-matter of the action falls within itsterms. If there is no express choice of theproper law of the contract, the law of the countryof the chosen court will usually, but notinvariably, be the proper law.

In SNI Aerospatiale's case (supra), the PrivyCouncil laid down the principles to be applied bya Court in deciding whether to restrain foreignproceeding. They are as follows :

"The principles applicable to the grantby an English Court of an injunction torestrain the commencement or continuanceof proceedings in a foreign jurisdictionwere not the same as those applicable tothe grant of a stay of Englishproceedings in favour of a moreappropriate foreign forum, and where aremedy for a particular wrong wasavailable both in an English Court and aforeign court the English Court wouldnormally only restrain the plaintifffrom pursuing the foreign proceedings ifit would be vexatious or oppressive forhim to do so."

In that case, a passenger in a helicopter waskilled when it crashed in Brunei. The helicopterwas manufactured in France by a French Companywhich had a subsidiary in Texas to whom thehelicopter was sold. At the time of the crash,the helicopter was owned by an English company andoperated and serviced by its Malaysian subsidiaryunder contract to a Brunei subsidiary of aninternational oil company. The widow of apassenger filed suits against the defendants inboth Brunei and Texas. The defendants applied inBrunei for an injunction restraining theplaintiffs from continuing the Texas proceeding.The Trial Court did not grant injunction. In theCourt of Appeal both sides agreed to accept thatin any trial in Texas the liability of thedefendants would be determined according to thelaw of Brunei. The Appeal Court held that Texashad become the natural forum by reason of the pre-trial discovery and in that forum the case couldbe more suitably tried, therefore, it dismissedthe appeal. On further appeal to the PrivyCouncil, it was held that Brunei was the naturalforum at the time of the commencement of theproceedings because the fatal accident hadoccurred there, the deceased and the plaintiffswere resident there and the law governing theclaim was the law of Brunei and there was nothingto connect the action with Texas, and pre-trialdiscovery and other steps taken by the attorneysin Texas would not change its position and had notmade Texas the natural forum. The Court in Bruneiremained the natural forum for the action and itwould be oppressive for the plaintiffs to proceedin Texas because the defendants might well beunable to pursue in those proceedings their owncontribution claim against the Malaysian companywhich serviced and operated the helicopter. Theappeal was thus allowed. Though, in that casealso there was no jurisdiction agreement forresolution of disputes the discussion suggeststhat a suit in breach of an exclusive jurisdictionclause is in itself not conclusive of being'vexatious and oppressive'. It will be useful torefer to the following observations of Lord Goff :

"In the opinion of their Lordships, in acase such as the present where a remedyfor a particular wrong is available bothin the English (or, as here, the Brunei)court and in a foreign court the English(or Brunei) court will, generallyspeaking, only restrain the plaintifffrom pursuing proceedings in the foreigncourt if such pursuit would be vexatiousor oppressive. This presupposes that,as a general rule, the English or Bruneicourt must conclude that it provides thenatural forum for the trial of theaction, and further, since the court isconcerned with the ends of justice thataccount must be taken not only ofinjustice to the defendant if theplaintiff is allowed to pursue theforeign proceedings, but also ofinjustice to the plaintiff if he is notallowed to do so. So, as a generalrule, the court will not grant aninjunction if, by doing so, it willdeprive the plaintiff of advantages inthe foreign forum of which it would beunjust to deprive him."

In regard to the test laid down in this case,in the Oxford Journal of Legal Studies*, Vol.17,it is rightly commented :

"The focus is on the interests of theparties not just the appropriateness ofthe forum. Injunctions will henceforthbe available only on a more limitedbasis; but that basis expressly balancesboth the fairness to the parties and thenaturalness of the forum. It is open,sufficiently narrow in scope, even-handed and fair. In short, an entirelysuitable contemporary test."

In Spiliada Maritime's case (supra), theHouse of Lords laid down the following principle:

"The fundamental principle applicableto both the stay of English proceedingson the ground that some other forum wasthe appropriate forum and also the grantof leave to serve proceedings out of thejurisdiction was that the court wouldchoose that forum in which the casecould be tried more suitably for theinterests of all the parties and for theends of justice".

The criteria to determine which was moreappropriate forum, for the purpose of orderingstay of the suit, the court would look for thatforum with which the action had the most real andsubstantial connection in terms of convenience orexpense, availability of witnesses, the lawgoverning the relevant transaction and the placeswhere the parties resided or carried on business.If the court concluded that there was no otheravailable forum which was more appropriate thanthe English Court it would normally refuse a stay.If, however, the court concluded that there wasanother forum which was prima facie moreappropriate, the court would normally grant a stayunless there were circumstances militating againsta stay. It was noted that as the disputeconcerning the contract in which the proper lawwas English law, it meant that England was theappropriate forum in which the case could be moresuitably tried.

In Airbus Industrie GIE vs. Patel & Ors.[(1998) 2 All ER 257], some British citizens ofIndian origin travelled in an Airbus-320 aircraftwhen it crashed at Bangalore airport. Theycommenced proceedings in Texas against theplaintiff-company. A similar claim was made by theAmerican claimants in Texas court. The plaintiffsobtained a declaration from the City Civil Court,Bangalore that the defendants were not entitled toproceed against them in any court of the worldother than in Bangalore, India. Thereafter, theyapproached the English Court to enforce thejudgment obtained from the Bangalore court and toobtain an injunction restraining the defendants,who were resident in England, from continuingtheir action in Texas on the grounds that thepursuit of that action would be contrary tojustice and/or vexatious or oppressive. Thelearned Judge at the first instance dismissed theapplication but the Court of Appeal allowed theplaintiff's appeal and granted injunction prayedfor. On appeal of the defendants, the House ofLords held that as a general rule, before an anti-suit injunction could be granted by an EnglishCourt to restrain a person from pursuingproceedings in a foreign jurisdiction, comityrequired that the English forum should have asufficient interest in, or connection with, thematter in question to justify the indirectinterference with the foreign court which such aninjunction entailed. However, in cases where theconduct of the foreign state exercisingjurisdiction was such as to deprive it of therespect normally required by comity, no such limitwas required in the exercise of the jurisdictionto grant an anti-suit injunction. Since, in theinstant case, the English Court had no interestin, or connection with the matter in question theCourt could not grant injunction sought as itwould be inconsistent with the principles ofcomity. The injunction granted by the Court ofAppeal was set aside and the appeal of thedefendants was allowed. Two aspects underlyingthis decision are worth noticing - the first isthe requirement of ends of justice and the secondis respect for other court's jurisdiction(comity).

British Aerospace Plc vs. Dee Howard Co.[1993 (1) LLR 368], deals with stay of Englishaction. In that case, a British Company (BAe)entered into an agreement with an American Company(DHC) to provide assistance and information inconnection with a re-engining programme which itwas undertaking. It was provided that theagreement should be governed by and be construedaccording to the English law and that the courtsof law in England should have jurisdiction toentertain any action in respect thereof. The DHCsuspended further work on the re-enginingprogramme claiming that the BAe failed to carryout its obligation under the agreement. The DHCinitiated action in Texas State Court. Afterservice of notice of that action the BAe appliedto the American Court to dismiss the proceedingsin view of the jurisdiction clause in theagreement. The BAc also initiated proceedings inEnglish Court duly impleading the parent company(Alenia) of the DHC, with the leave of the Court.While so, the DHC applied to the English Court forthe following reliefs: (i) to set aside the leaveand (ii) to stay the proceedings against theparent company in the English Court as the actionwas pending in American Court which was theappropriate forum. Waller,J. on construing thejurisdiction clause in the agreement held that theparties had agreed that the English Court shouldhave exclusive jurisdiction and that even if itwas not an exclusive jurisdiction clause, itshowed that the parties had freely negotiatedagreeing not to object to the English Court'sjurisdiction, therefore, it should not be open tothe DHC to argue the relative merits of contestingthe case in Texas as compared with contesting thecase in London as the relevant factors would havebeen eminently foreseeable at the time of enteringinto the contract and that the contentions thatthere would be two sets of proceedings one inTexas and another in London and that there wouldbe inconvenience for witnesses having regard tothe location of documents, the timing of a trialand all such like matters to support stay ofEnglish action could not be permitted to be urged.In Donohue vs. Armco Inc and others [2002 (1)All.ER 749], there were three contracts for thesale of shares in the Armco insurance group ofcompanies (for short, 'the A group') containingexclusive jurisdiction clauses providing that theparties irrevocably submit themselves to theexclusive jurisdiction of the English Courts tosettle any dispute which might arise out of or inconnection with the agreement. Disputes havingarisen the 'A group' initiated proceedings in NewYork against D and others. D applied to theEnglish Court for an anti-suit injunctionpreventing the 'A group' from bringing claimsarising from the sale of the shares against D inany forum other than England. The learned Judgeat the first instance declined to grant theinjunction prayed for but the Court of Appealgranted the prayer of anti-suit injunction. Onthe appeal of D to the House of Lords, it was heldthat where the parties had bound themselves by anexclusive jurisdiction clause, effect shouldordinarily be given to that obligation in theabsence of strong reasons for departing from it.The question whether strong reasons exist todisplace the claim under the contract would dependon the facts and circumstances of each case. LordBingham of Cornhill with whom other Law Lordsagreed held thus:

"Where the dispute was between twocontracting parties, one of which suedthe other in a non-contractual forum,and the claims fell within the scope ofthe exclusive jurisdiction clause intheir contract, and the interests ofother parties were not involved, effectwould in all probability be given to theclause. However, the court might welldecline to grant an injunction or a staywhere the interests of parties otherthan parties bound by the exclusivejurisdiction clause were involved orgrounds of claim not the subject of theclause were part of the relevant disputeso that there was a risk of parallelproceedings and inconsistent decisions.In the instant case, D's strong primafacie right to be sued in England onclaims made by the other parties to theexclusive jurisdiction clause insofar asthose claims fell within that clause wasmatched by the clear prima facie rightof the A group to pursue other claims inNew York. The crucial question waswhether, on the facts, the A group couldshow strong reasons why the court shoulddisplace D's prima facie entitlement.Moreover, if strong reasons were found,such reasons would have to lie in theprospect, if an injunction was granted,of litigation continuing partly inEngland and partly in New York, and thatwas a consideration to which greatweight should be given."

Our attention was also invited to a decisionof Court of Appeal in SABAH Shipyard (Pakistan)Ltd. Vs. (1) Islamic Republic of Pakistan (2)Karachi Electrics Supply Corporation Ltd.(2002)(2002 EWCA Civ 1643). In that case SABAH, alimited Company incorporated in Pakistan by itsMalaysian parent, entered into an agreement with astate owned corporation - KESC, in regard to thedesign, construction, operation and maintenance ofa barge-mounted electricity generation facility atKarachi. The Government of Pakistan (GOP) enteredinto a guarantee in favour of SABAH which, interalia, provided that the parties consented to thejurisdiction of the Courts of England for anyaction under the agreement to resolve any disputebetween them and waived the defence ofinconvenience of forum in any action or proceedingbetween them in the Courts of England. The GOPbrought an action in the Court of Senior Judge,Islamabad and obtained an anti-suit injunctionagainst SABAH. However, SABAH also brought anaction in English Court and sought an anti-suitinjunction which was granted restraining the GOPfrom continuing proceeding in the Court of SeniorJudge, Islamabad. Against the order continuing theinjunction, the GOP went in appeal before theCourt of Appeal. Waller, L.J. with whom the othermembers of the Court of Appeal agreed inreaffirmation of the principles laid down in SNIAerospatiale's case (supra), held that thelearned judge in the first instance was right inconstruing that the clause in the agreement was anon-exclusive jurisdiction clause and that as GOPhad agreed to submit any disputes between theparties to the jurisdiction of the English Courtand to waive any objection that any action broughtin England was in an inconvenient forum,therefore, it could not have been the intention ofthe parties that if proceedings were commenced inEngland, parallel proceedings could be pursuedelsewhere unless there was some exceptional reasonfor doing so. The action of GOP in seeking toprevent SABAH in commencing proceedings in theagreed jurisdiction was construed as a clearbreach of contract and it was observed that theproceedings in Pakistan might also be vexatious ifcommenced after the English proceedings and/orsimply to attempt to frustrate the jurisdictionclause which expressly dealt with the forumconveniens aspect so as to enable England to bethe most likely forum for resolution of disputesand that England was the agreed jurisdiction towhich neither party could object. It was notedthat the GOP could not show any exceptional reasonwhy parallel proceedings were justified and thatthe fact that the GOP commenced the proceedingsfirst, did not change the position because theydid so as a pre-emptive strike.

From the above discussion the followingprinciples emerge :

(1) In exercising discretion to grant ananti-suit injunction the court must besatisfied of the following aspects : -

(a) the defendant, against whominjunction is sought, is amenable to thepersonal jurisdiction of the court;

(b) if the injunction is declined theends of justice will be defeated andinjustice will be perpetuated; and

(c) the principle of comity - respectfor the court in which the commencementor continuance of action/proceeding issought to be restrained - must be bornein mind;

(2) in a case where more forums than one areavailable, the Court in exercise of itsdiscretion to grant anti-suit injunctionwill examine as to which is theappropriate forum (forum conveniens)having regard to the convenience of theparties and may grant anti-suitinjunction in regard to proceedingswhich are oppressive or vexatious or ina forum non-conveniens;

(3) Where jurisdiction of a court is invokedon the basis of jurisdiction clause in acontract, the recitals therein in regardto exclusive or non-exclusivejurisdiction of the court of choice ofthe parties are not determinative butare relevant factors and when a questionarises as to the nature of jurisdictionagreed to between the parties the courthas to decide the same on a trueinterpretation of the contract on thefacts and in the circumstances of eachcase;

(4) a court of natural jurisdiction will notnormally grant anti-suit injunctionagainst a defendant before it whereparties have agreed to submit to theexclusive jurisdiction of a courtincluding a foreign court, a forum oftheir choice in regard to thecommencement or continuance ofproceedings in the court of choice, savein an exceptional case for good andsufficient reasons, with a view toprevent injustice in circumstances suchas which permit a contracting party tobe relieved of the burden of thecontract; or since the date of thecontract the circumstances or subsequentevents have made it impossible for theparty seeking injunction to prosecutethe case in the court of choice becausethe essence of the jurisdiction of thecourt does not exist or because of a vismajor or force majeure and the like;(5) where parties have agreed, under a non-

exclusive jurisdiction clause, toapproach a neutral foreign forum and begoverned by the law applicable to it forthe resolution of their disputes arisingunder the contract, ordinarily no anti-suit injunction will be granted inregard to proceedings in such a forumconveniens and favoured forum as itshall be presumed that the parties havethought over their convenience and allother relevant factors before submittingto non-exclusive jurisdiction of thecourt of their choice which cannot betreated just an alternative forum;

(6) a party to the contract containingjurisdiction clause cannot normally beprevented from approaching the court ofchoice of the parties as it would amountto aiding breach of the contract; yetwhen one of the parties to thejurisdiction clause approaches the courtof choice in which exclusive or non-

exclusive jurisdiction is created, theproceedings in that court cannot per sebe treated as vexatious or oppressivenor can the court be said to be forumnon-conveniens; and(7) the burden of establishing that theforum of choice is a forum non-

conveniens or the proceedings thereinare oppressive or vexatious would be onthe party so contending to aver andprove the same.

Now adverting to the facts of this case, thejurisdiction clause in the contract runs thus :

"This agreement shall be governed by andconstrued in accordance with English lawand the parties hereby submit to thenon-exclusive jurisdiction of theEnglish Courts (without reference toEnglish conflict of law rules)."

A plain reading of this clause shows that theparties have agreed that their contract will begoverned by and be construed in accordance withEnglish law and they have also agreed to submitto the non-exclusive jurisdiction of EnglishCourts (without reference to English conflict oflaw rules). We have already observed above thatrecitals in regard to submission to exclusive ornon-exclusive jurisdiction of a court of choicein an agreement are not determinative. However,as both the parties proceeded on the basis thatthey meant non-exclusive jurisdiction of theEnglish Courts, on the facts of this case, theCourt is relieved of the interpretation ofjurisdiction clause. Normally, the court willgive effect to the intention of the parties asexpressed in the agreement entered into by themexcept when strong reasons justify disregard ofthe contractual obligations of the parties. InDonohue's case (supra) although the parties tothe agreement stipulated to submit to theexclusive jurisdiction of the English Courts,the House of Lords found that it would not be inthe interests of justice to hold the parties totheir contract as in that case strong reasonswere shown by the respondent. It was feltnecessary that a single trial of all the claimsof the parties by one forum would be appropriateand as all the parties to the New Yorkproceedings were not parties to the agreementstipulating exclusive jurisdiction of theEnglish Court and as all the claims before theNew York court did not arise out of the saidcontract so they could not have been tried inthe English Court. It was urged that in thecircumstances parallel proceedings - one inEngland and another in New York - would have togo on which might result in inconsistentdecisions. Those facts were considered as strongreasons to decline to grant anti-suit injunctionthough the parties had agreed to the exclusivejurisdiction of the English Court. In contrastin SABAH's case (supra) even though GOP filedthe suit first in the court of naturaljurisdiction and sought anti-suit injunctionagainst SABAH restraining them from proceedingwith the action brought by them in the EnglishCourt, the Court of Appeal found that non-exclusive jurisdiction clause in the agreementof guarantee executed by GOP was binding onthem. The action of GOP in filing the suitearlier in the court of natural jurisdiction washeld to be clearly in breach of contract and inthe context of the non-exclusive jurisdictionclause, oppressive and vexatious unless the GOPcould show strong reasons as to why parallelproceeding would be justified. The only groundurged for continuance of proceeding in PakistanCourt was that it was a convenient forum whichwas considered not strong enough for the GOP todisregard the contractual obligation ofsubmission to the jurisdiction of the EnglishCourt for resolution of disputes. The Court ofAppeal, upheld the anti-suit injunction grantedby the learned Judge at the first instance asalso the order declining to stay the Englishsuit.

In the instant case, though the learnedsingle judge proceeded on the prima faciefinding that the proceedings in the EnglishCourts would be oppressive and vexatious, in ourview, those findings, recorded at the stage ofpassing an ad-interim order, would not bind thesame learned judge much less they would bind theappellate court or the parties thereto atsubsequent stage of the same proceeding becauseit cannot operate as issue estoppel. It cannotbe laid down as a general principle that oncethe parties have agreed to submit to thejurisdiction of a foreign court, the proceedingsor the action brought either in the court ofnatural jurisdiction or in the court of choicewill per se be oppressive or vexatious. Itdepends on the facts of each case and thequestion whether the proceedings in a Court arevexatious or oppressive has to be decided on thebasis of the material brought before the court.Having perused the plaints in both the suits andthe contract we are of the view that theproceeding in the English Court for recovery ofthe minimum guaranteed amount under the contractcannot, at this stage, be said to be oppressiveor vexatious. It is true that the courts wouldbe inclined to grant anti-suit injunction toprevent breach of contractual obligation tosubmit to the exclusive or non-exclusivejurisdiction of the court of choice of theparties but that is not the only ground on whichanti-suit injunction can be granted. As isapparent the appellants brought the suit in thecourt of natural jurisdiction for adjudicationof the disputes arising under the contract forwhich the parties have agreed to submit to thenon-exclusive jurisdiction of the English Courtin accordance with English law though theEnglish Court has no nexus with the parties orthe subject-matter and is not the natural forum.But then the jurisdiction clause indicates thatthe intention of the parties is to have thedisputes resolved in accordance with theprinciples of English law by an English Court.Unless good and sufficient reasons are shown bythe appellants, the intention of the parties asevidenced by their contract must be given effectto. Even when the appellants had filed the suitearlier in point of time in the court of naturalforum and the respondent brought action in theEnglish Court which is the agreed forum or forumof the choice having regard to the expressedintention of the parties, no good and sufficientreason is made out to grant anti-suit injunctionto restrain the respondent from prosecuting theEnglish action as such an order would clearly bein breach of agreement and the court will not,except when proceedings in foreign court ofchoice result in perpetuating injustice aid aparty to commit breach of the agreement. Toapply the principle in Donohue's case good andsufficient reasons (strong reasons) should beshown to justify departure from the contractualobligations. Here, two contentions have beenurged; the first is that the English Court isforum non-conveniens in view of the allegedbreach of the agreement by the respondent in themanner not foreseen. This, in our view, is farfrom being a good and sufficient reason toignore the jurisdiction clause. Even otherwisethe fact that the parties had agreed to resolvetheir disputes arising under the agreement,shows that they had foreseen possible breach ofagreement by any of the parties and provided forthe resolution of the disputes which might arisetherefrom. In the context, the foreseeabilitytest would take in circumstances which renderapproaching the forum of choice impossible likethe court of choice merging with other court andlosing its identity or a vis major etc., whichwould make it impossible for the party seekinganti-suit injunction, to prosecute the casebefore the forum of choice. In our view, on thefacts of this case, the foreseeability testcannot be extended to the manner of breach ofthe contract so as to turn the forum of choiceinto forum non-conveniens. Circumstances such ascomparison of litigation expenses in England andin India or the hardship and incurring of heavyexpenditure on taking the witnesses to theEnglish Court, would be deemed to have beenforeseen by the parties when they agreed tosubmit to the jurisdiction of the English Courtin accordance with the principles of English lawand the said reasons cannot be valid grounds tointerdict prosecution of the action in theEnglish Court of choice. And the second is thatEnglish Court has no connection with either ofthe parties or the subject-matter and it is nota court of natural jurisdiction. This reason canbe taken note of when strong reasons are shownto disregard the contractual obligation. Itcannot be a good and sufficient reason in itselfto justify the court of natural jurisdiction tointerdict action in a foreign court of choice ofthe parties.

We, therefore, find no valid reasons to grantanti-suit injunction in favour of theappellants, in disregard of jurisdiction clause,to restrain the respondent from prosecuting thecase in the foreign forum of the choice of theparties - the English Court.

For the aforementioned reasons, interferencein the order of the High Court, under challenge,is not warranted. The appeal fails and it isaccordingly dismissed with costs.

* Modern Admiralty Law by Aleka Mandaraka-Sheppard (First Edition at page 275). ? Recognition of Foreign Judgments at Common Law - The Anti-Suit Injunction Link by Jonathan Harris.

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